In "A Child is Missing" we report all Federal Hague Convention Child Abduction Cases. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.

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Thursday, September 29, 2011

In Lockhart v Smith, 2011 WL 4402361 (D.Me.) the District Court granted Kimberly Ann Lockhart’s second Petition for Return of her child. In 2006, the Court held an evidentiary hearing on her first Petition for Return and it incorporated by reference the factual findings from its earlier opinion, Lockhart v. Smith, 2006 WL 3091295 (D.Me. Oct. 20, 2006). Petitioner was a citizen of Canada and resided in Nova Scotia, Canada. She was the mother of S.P.S. and G.T.S. Respondent Philip Gavin Smith ("Smith") was a citizen of the United States and resided in Maine. He was their father. S.P.S. was the eleven year old daughter of Lockhart and Smith. G.T.S. was their twelve year old son. They each had dual citizenship in the United States and Canada.

Petitioner and Respondent stipulated that Petitioner was the custodian of the Children; that Canada was their habitual residence; that Petitioner was exercising or attempting to exercise her custodial rights at the time she filed her Petition; and that Petitioner made a prima facie case against Respondent for wrongful retention under the Hague Convention. In addition the Respondent waived all other defenses under the Hague Convention and stipulated that his sole defense in this action was the "child's wishes" defense under Article 13 of the Hague Convention.

The District Court indicated that it had interviewed the Children in camera. When it interviewed S.P.S. in camera, it found her to be delightful and mature. She expressed that she was happy to return home to Canada, that she missed her friends in Canada, and that she was ready to return to school in Canada. S.P.S. expressed no negative views about returning to Canada and she did not object to returning to Canada. When it interviewed G.T.S. in camera, it found him to be delightful and mature as well. He also expressed that he was happy to return home to Canada, that he missed his friend in Canada, and that he was ready to return to school in Canada. G.T.S. expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expressed no negative views about returning to Canada and he did not object to returning to Canada.

The District Court found that Petitioner had made a prima facie case against Respondent for wrongful retention under the Hague Convention. It observed that under Article 13 of the Hague Convention, the Court may refuse to return a child to the country of his or her habitual residence if the Court "finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Pursuant to the "child's wishes" exception, the Court may take the testimony of G.T.S. and/or S.P.S. in camera to determine whether to refuse to return the children to their country of origin because the children object to being returned. See Yang v. Tsui, 499 F.3d 259, 279 (3d Cir.2007); Falk v. Sinclair, No. 09-346-P-S, 2009 WL 4110757, at *3 (D.Me. Nov. 23, 2009). Based on its in camera interview of S.P.S., the court found that she had attained sufficient age and maturity that it was appropriate to take her views into account. S.P.S.'s views did not foreclose her being returned to Canada. She did not object to being returned to Canada, she expe views about returning to Canada, and he expressed that he would be happy to return to Canada. The Court found that Respondent has failed to establish that the Children objected to being returned to Canada, and granted the Petition.

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This blog is published by Joel R. Brandes Consulting Services, Inc.
Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
Notice: The information on this site pertains to New York and Federal law only and is offered as a public service. It is not intended to give legal advice about a specific legal problem, nor does it create an attorney-client relationship. Due to the importance of the individual facts of every case, the generalizations we make may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.

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What this Blog is About

This blog is dedicated to all of those parents, relatives and friends of persons whose children are missing and have been abducted by a parent, to another country. The Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention, established procedures to enable parents to obtain the prompt return, to their country of habitual residence, of children who have been unlawfully removed or retained in another country. In this blog we will focus on providing information with regard to what to do where there is a child abduction that crosses country boarders.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms